Jordan v Legal Practitioners Conduct Board No. Scgrg-94-2155, Scgrg-97-721 Judgment No. S6668

[1998] SASC 6668

JORDAN v LEGAL PRACTITIONERS CONDUCT BOARD

Full Court:  Prior, Olsson and Perry JJ
Prior J

In this matter, a practitioner of the court seeks an adjournment of a purported appeal against an order of Millhouse J dismissing his application for an extension of time within which to appeal against a taxation of costs. 

A master of this court made some findings and delivered reasons on 5 December 1995.  He then spoke of arranging a fresh date for taxation on delivery of his judgment.  On 15 March 1996, the master published a further set of reasons in which he referred to an untaxed bill of the practitioner coming to $23000.  The master described this amount as 'outrageous'.  He concluded that the practitioner should have his costs for $2792.18, adding to that a further $1500 as an appropriate amount for the cost of another firm of practitioners. 
The court is not satisfied that this is an appropriate matter to be adjourned, notwithstanding the material now before it with respect to the practitioner's health.  I refer to but do not repeat matters put in the course of submissions today. 
In my view, this matter requires attention here and now.  A significant factor going to the refusal of the adjournment is that the practitioner has no arguable case on the matter he seeks to pursue in this Court. 
Millhouse J refused the practitioner's application on 31 October 1997.  He held that the practitioner had failed to explain a ten month delay in the institution of a purported appeal.  By 19 August 1996, the practitioner was not represented by any other legal practitioner.  Millhouse J rejected the practitioner's complaint of work, worry and the demands made of him by the Legal Practitioner Disciplinary Tribunal as explanation enough for what the trial judge correctly held was an inordinate delay, with prejudice to the beneficiaries of an estate with respect to which the practitioner acted as executor and sought to charge the sum of $23000. 
In my view, any purported appeal from the master's taxation, or from the refusal of Millhouse J to extend time within which to appeal, should be dismissed for the reasons give by Millhouse J.  However, as has already been said in the course of argument, there is a fundamental flaw in procedure invoked by the practitioner.  Taxation of a bill of cost is subject to special provisions in the Supreme Court Rules, r101.  A party dissatisfied with the decision of a taxing officer may, before the certificate of taxation or allocatur is signed, or at such other time as may be fixed by the master, follow the procedure set out in r101.19.   That procedure leads to a reconsideration of the taxation by the same master who conducted the taxation.   Reconsideration pursuant to r101.19 precedes any other step with respect to the taxation. 
Rule 101.21 provides that a party dissatisfied with the certificate or allocatur made after reconsideration may apply to a judge in chambers for an order for review of the taxation.  That procedure has not been applied in this case. 
The purported application for extension of time within which to appeal is, therefore, incompetent.  The purported appeal to this court must be dismissed on that ground alone. 
Although Mr Hayes QC submitted there is no need to express an opinion on the matter, on the material disclosed to this court, there appears to me to be no proper basis upon which a review could now be allowed. 
The order of the court should, therefore, be that the purported appeal be dismissed as incompetent.  By reference to 'purported appeal', I meant the extension of time application. 
Olsson J
I agree with what has been said and would only wish to draw attention to one other aspect lest it arise for consideration in future.  That is, even assuming that the proper review process is undertaken at some stage, a serious issue may well arise as to whether there is any right of appeal from a review to this court in any event as to which I express no opinion.  However, it is an issue that may have to be addressed. 

Perry J

I agree with the order proposed by Prior J.  I agree, also, with the remarks made by Olsson J as to the possibility of any appeal from the review.

Prior J
         The order is that the purported appeal is dismissed as incompetent and the extension of time sought refused.